In new court papers, the government has again taken the view that the constitutional right to basic education is not immediately realisable but is subject to budgetary constraints.

It argues this in its answering affidavit to the Centre for Child Law's recent application on behalf of thousands of Eastern Cape pupils who lack classroom chairs and desks. The application links the provision of school infrastructure to the Constitution's guarantee of the right to basic education, arguing this right is "immediately realisable and is not subject to progressive realisation in the light of available resources" (Mail & Guardian, "Teaching floored by lack of chairs", October 19).

But the government's answering affidavit filed this week denies any "intent on violating the constitutional rights or discriminating against any of the learners", arguing that "the funding of the public schools is dependent on the budget allocated to the respondents' department".

The respondents include Basic Education Minister Angie Mot­shekga, the government, the Eastern Cape provincial government and the province's education MEC.

On behalf of all the respondents, the affidavit of Sithembele Zibi, deputy director general of the Eastern Cape education department, denies that the government has not addressed the crisis — although many pupils are sitting on mealie-meal sacks, beer crates and bricks.

"On April 23 2012, district directors were requested to establish prioritised lists in respect of furniture procurement for schools in their district," the affidavit, filed this week, states.
The Eastern Cape education department would transfer funds to district officials to buy furniture on behalf of schools. It would take place in two tranches, the first of which — more than R9-million — has already been paid, the affidavit says. The plan is to provide furniture first to schools in the worst condition.

Not so lucky
But this means the three schools represented by the applicants — Mpimbo, Mbananga and Sirhudlwini junior secondary schools — will not benefit immediately because they are not on the department's list of those prioritised to receive furniture from the first tranche of funds. But they are expected to benefit from the second tranche, before the beginning of the 2013 school year.

Although the three schools involved in the case were thrilled to hear that they would be getting furniture next year, "there are hundreds of thousands of children in the province who will still be on the floor", said Cameron McConnachie, attorney for the Legal Resources Centre, which represents the Centre for Child Law and the schools in the case, due to be heard in the Mthatha High Court on November 29.

"Something like a desk and chair is so necessary that children cannot wait for these to be provided," he said. The centre's founding affidavit describes learning conditions in many Eastern Cape schools as "deplorable" and "irreparably harmed" by a lack of furniture.

This is not the first time the government has argued that the Constitution does not make basic education an immediately realisable right. In papers responding to non-governmental organisation Equal Education's court application regarding school infrastructure earlier this year, the department said: "The right guaranteed by … the Constitution is the right to a basic education [and] account has to be taken of socioeconomic realities."

Equal Education is asking the Bhisho High Court to order Motshekga to promulgate minimum norms and standards for school infrastructure. This case is set down for November 20.

Neither the national nor the provincial education departments responded to a request for comment by the time of going to print.